In re Marriage of Denton

Full title: In re the Marriage of DEBRA DENTON and MICHAEL ANDERSON. DEBRA M. DENTON…

Court: Court of Appeals of California, Sixth District.

Date published: Oct 29, 2003

No. H025146 (Cal. Ct. App. Oct. 29, 2003)

Opinion

H025146.

10-29-2003

In re the Marriage of DEBRA DENTON and MICHAEL ANDERSON. DEBRA M. DENTON, Appellant, v. MICHAEL ANDERSON, Respondent.

Rushing

This is an appeal from an order issued in a marital dissolution action that resulted from an order to show cause (OSC) proceeding filed by Michael Anderson, the former husband (hereafter "Husband"), against his former wife, Debra Denton (hereafter "Wife") in which the trial court made various orders regarding the disposition of the parties marital property. Wife contends that the trial court erred when it failed to enforce the parties marital settlement agreement, when it ordered an unequal division of the property and awarded Husband $170,000 for Wifes misconduct in the management of marital assets, when it found that its awards in favor of Husband were in the nature of spousal support, when it took judicial notice of a ruling of the bankruptcy court in Husbands bankruptcy action, and when it excluded certain documents from evidence. Wife also challenges the trial courts findings related to the value of certain real property, the method used by the trial court to determine the value of the property, and the courts ruling regarding the parties personal property and retirement accounts.

We conclude that Wife has not met her burden of demonstrating error related to the courts award of $170,000 for the loss of the real property, based on Wifes mismanagement and misconduct during the marital proceedings. We also hold that the court erred in characterizing its award as spousal support and strike that portion of the order. We conclude that the court abused its discretion in failing to award Wife her share of some bonds, in awarding Husband a share of Wifes retirement and 401K funds without first determining whether her obligation to him had been discharged in bankruptcy, and in failing to determine whether Wife had any rights in Husbands 401K and pension plans. We shall therefore reverse and remand for further proceedings.

FACTS AND PROCEDURAL HISTORY

In April 1996, after 11 years of marriage, Wife petitioned for dissolution of marriage. Husband filed a response. The parties have two children. The petition and response raised issues as to custody and visitation, as well as the division of the parties property.

Early Disagreements Regarding Property

The divorce proceedings were contentious and the parties disagreed about the division of their property. The parties agreed that Wife could remove specific items of personal property from the former family home in May 1996. Husband boxed up some of the property for Wife. Husbands mother was present when Wife arrived, to make a record of what Wife took. The police were called, allegedly because Wife refused to let Husbands mother record what she was taking. Husband and Husbands mother claimed Wife took things that she was not supposed to take. Wife denied doing so.

Husband alleged that Wife took $1,642 that had been set aside to pay the rent out of a credit union account, that the rent was not paid, and that this caused a chain of events that led to Husbands bankruptcy. Wife admitted to taking the funds, but claimed that she had used the money to pay the rent and that when the bank refused to accept the payment, she paid the landlord directly.¹

1 At the time of separation, the parties rented a house from Wifes brother-in-law. The parties had entered into a rent-to-own arrangement with Wifes brother-in-law. Under the terms of that agreement, the parties paid the brother-in-laws mortgage on the property.

In October 1996, while Wife was at work, Husband took the van that Wife customarily drove from the parking lot at her place of employment. Wife obtained an order from the court, finding that she was entitled to exclusive, temporary use of the van. Husband never returned the van and Wife opted not to file a contempt proceeding. The parties later agreed that Husband could keep the van, if he made the payments. Wife obtained a court order, ordering Husband to pay her $750 in attorney fees as a result of the van incident.

Settlement of Property Issues

The parties agreed to a division of their personal property and furnishings at mediation on October 21, 1996. The parties marital status was terminated pursuant to an interlocutory judgment filed on November 15, 1996. Shortly thereafter, Husband placed some of the property that was to go to Wife in storage, along with his own property.

On January 30, 1997, shortly before trial of the property the issues, the parties attended a settlement conference before Judge Pro Tem Dennis Del Ponte and settled the property issues. The terms of their settlement agreement were memorialized in a handwritten memorandum that was signed by both parties, their counsel, and the pro tem judge. The parties agreed that their settlement would be reduced to a stipulated judgment. The pro tem judge wrote the words "It is so ordered" on the memorandum and ordered Wifes attorney, Barbara Brock, to prepare the stipulated judgment.

Terms of Property Settlement Agreement

According to the handwritten memorandum, Wife was to quitclaim any interest she had in the real property located at 2701 Gum Drop Drive, San Jose (hereafter Gum Drop)² in exchange for Husbands signature on the stipulated judgment. Husband was to keep the assets of a photography business.³ Husband was to receive the van and to assume all debt related to the van. Wife was to maintain temporary possession of a Cougar automobile, which was not encumbered by any debt. The parties pension funds and 401K plans with Lockheed were to be the subject of a qualified domestic relations order (QDRO). The parties were to share all tax liabilities incurred during the marriage equally. The value of bonds, credit card balances, and marital debt as of the date of separation were to be divided equally. The memorandum contained an equalization provision that provided that Wife would take 100 percent of the marital debt and credit card debt plus one half of the value of the bonds as of the date of separation in exchange for one half of the value of those assets and liabilities rolling over from Husbands 401K into Wifes 401K.⁴

2 Husband acquired Gum Drop prior to the marriage. Wifes name was added to the deed after they married. The parties used assets acquired during the marriage to pay the mortgage and a home equity loan on Gum Drop. At the time of their separation, the parties did not live in Gum Drop. It was a rental property.

3 Both parties were employed by Lockheed Missiles and Space (Lockheed). The photography business was a side business operated by Husband. Husband claimed he had not operated the business since 1994. However, he did have some of the assets of the business.

4 According to the draft settlement agreement, the marital and credit card debt was $11,973.29 and one half of the debt ($5,986.64) was to be transferred from Husbands 401K to Wifes 401K as an equalizing payment.

The memorandum noted that the parties had previously stipulated to the division of their personal belongings and furnishings. Husband was to pay all storage fees for the property that was in storage. Husband was to "immediately" make the storage space available to Wife so that she could retrieve the items that were to go to her. This was to be accomplished within 30 days of signing the judgment.

The court reserved the issue of attorney fees, which was to be submitted by declaration by March 20, 1997. The court also reserved the issue of spousal support until after the custody and visitation issues were resolved.

Preparation of Stipulated Judgment Based On Settlement Agreement

Wifes attorney prepared a draft stipulated judgment. The parties appeared for an early disposition conference before Judge Pro Tem James Cox on February 28, 1997, at which time they discussed the draft judgment. The judge pro tem ordered Wifes attorney to rewrite the judgment and to provide proof of the debts and bonds.

There was no evidence that further drafts of the stipulated judgment were ever prepared. The parties never signed a stipulated judgment.

Discovery and Discovery Motions; Bankruptcy Filings

Sometime after February 1997, both parties attorneys withdrew. In March 1997, Wife signed a quitclaim deed transferring her interest in Gum Drop to Husband.

By July 1997, Wife had a new attorney, Walter Hammon. Husband was in pro per. Rather than finalize the stipulated judgment or file a motion to enforce the parties settlement agreement, Hammon propounded discovery on Husband, including every question on the family law set of form interrogatories. Hammon also noticed Husbands deposition and asked him to prepare a schedule of assets and debts.⁵ Husband did not respond to the discovery.

5 According to Hammon, he also propounded a request for production of documents on Husband in July 1997. There is no evidence of that document request in the record.

In August 1997, Wife filed for bankruptcy because nothing had been done to address the parties debt in the six months since they had made their settlement agreement and she did not want to leave the debt "in suspension waiting for something to happen." After Wife filed for bankruptcy, the parties creditors came to Husband to satisfy the debt. Husband, who was unable to handle the debt, was forced to seek protection in bankruptcy in August 1997. That same month, he also retained a new attorney in the dissolution action, Phyllis Rafter.

After Husband retained counsel, Wifes attorney decided to propound the discovery again. On September 25, 1997, Wifes counsel propounded all of the family law form interrogatories, including a request to prepare a schedule of assets and debts, propounded 35 requests for production of documents, and noticed Husbands deposition. The document requests asked for information regarding Husbands income, assets, and liabilities. The deposition was continued once at the request of Husbands counsel. The attorneys discussed the possibility of continuing the deposition a second time, but never reached an agreement. Husband did not appear for his December 15, 1997 deposition, did not answer the interrogatories, and did not produce any documents.

On December 31, 1997, Wifes attorney filed a motion to compel Husband to answer interrogatories, produce documents, and appear for a deposition. Wifes attorney alleged that Husband had a history of being uncooperative, which had resulted in delays and unnecessary court appearances related to the child custody and visitation issues.

On March 18, 1998, the court granted Wifes motion to compel and ordered Husband to respond to the discovery and pay Wife $ 2,400 in attorney fees. The court reserved jurisdiction to consider issue sanctions, in the event Husband did not comply with the order.

Husband did not comply with the court order and did not respond to the discovery. On May 4, 1998, Wife filed a motion requesting further discovery sanctions. By this time, Husband was once again in pro per. In July 1998, shortly before the hearing on the motion, husband retained new counsel, Louis Larocca. Larocca appeared at the hearing of the motion and negotiated a stipulation that provided that Husband would have an additional 30 days to answer the interrogatories and produce documents and that his deposition would be set for a mutually agreeable date. The stipulation also provided that Husband would pay another $1,500 in attorney fees.

As it turns out, the only thing attorney Larocca ever did for Husband was negotiate the stipulation. Larocca did not prepare responses to the discovery. Wife filed another motion, requesting further sanctions. Larocca did not file any opposition to the motion and did not appear at the hearing on the motion. On October 28, 1998, the court ordered that Husbands response be stricken and that the matter proceed on a default basis.

Default Judgment

On November 23, 1998, the court entered a default judgment in favor of Wife. Neither Husband nor Husbands counsel attended the proceedings in which the default judgment was entered. The default judgment awarded each party the clothing, jewelry, and personal property in his or her possession as of the date of the judgment. Husband received the Gum Drop property and became solely responsible for any debt associated with the property. Husband was also awarded both cars, the photographic business, and the bonds. The court found that the cars had a combined value of $12,000, that the photographic business was worth $50,000, and that the bonds were worth $14,500. The court also found that Husband had received $30,000 more than Wife in personal property. Each party was awarded sole interest in his or her employment benefits acquired during the marriage.⁶ The court ordered that spousal support shall terminate and terminated its jurisdiction over the issue of spousal support.

6 According to Husband, Wife earned considerably more than he did and her employee benefit accounts were more valuable than his.

The court awarded Wife $16,460 in attorney fees and costs and determined that Husband should make an equalizing payment of $53,250 to Wife, for a total of $69,710. The court awarded Wife a lien against the Gum Drop property. Alternatively, the court ordered that the $69,710 could come from Husbands employee benefit accounts and that Wife was entitled to a QDRO.

Motion to Set Aside Default and Default Judgment

On November 28, 1998, five days after the default judgment was entered, Husband received notice that his response had been stricken. Husband first learned of the default judgment in mid-December 1998, when he received notice from his employer that Wife was trying to take money out of his employee benefit accounts to satisfy the judgment. He contacted Larocca to find out what was going on. Larocca did not respond to his inquiries and failed to show up for an appointment Husband scheduled. Husband finally got to discuss the case with Larocca on December 30, 1998. Larocca advised Husband that he could move to have the judgment set aside, but suggested that they wait to do so until a certain judge left the bench. On January 27, 1999, Larocca sent Husband a substitution of attorney form that indicated that health concerns forced Larocca to withdraw.

Husband subsequently retained Daniel Halpern, who substituted in as attorney of record on April 29, 1999. On May 20, 1999, Husband filed a motion to set aside the default and the default judgment on the grounds that Larocca had failed to properly represent him. Husband alleged that Larocca failed to respond to his inquiries regarding the status of the case and had told Husband that he had prepared the discovery responses. Husband also asserted that Wife had obtained the default judgment in violation of the automatic stay entered in Husbands bankruptcy action.

The court found that the default and the default judgment had been entered as a result of excusable neglect and inadvertence by Husband and that Laroccas inattentiveness and negligence could not be imputed to Husband pursuant to Family Code section 2124.⁷ The court granted the motion and reinstated Husbands response. The courts order was filed on October 25, 1999.

7 Family Code section 2124 provides: "The negligence of an attorney shall not be imputed to a client to bar an order setting aside a judgment, unless the court finds that the client knew, or should have known, of the attorneys negligence and unreasonably failed to protect himself or herself."

OSC Requesting Entry of Judgment in Accordance With Settlement Agreement and Equalization of Same

In October 2000, Husbands attorney communicated with Wifes new attorney, Sidney Flores, about enforcing the existing property settlement agreement. The attorneys were concerned about going forward in light of Husbands ongoing bankruptcy claim and discussed various stipulations to address the issue. The parties were unable to resolve the property issues informally.

On November 27, 2001, Husband filed an OSC to enter a property judgment based on the January 1997 settlement agreement and for "enforcement/equalization" of the agreement. By the time the OSC was filed, Wife had been discharged from bankruptcy. However, Husband remained in Chapter 13 bankruptcy.

The OSC was heard on March 15, 2002. By that time, Wife was represented by attorney Douglas Durward. At the beginning of the proceeding, Husbands attorney advised the court that Husbands request was not a motion for judgment or a motion to enforce the settlement agreement pursuant to Code of Civil Procedure section 664.6, but rather a request for equitable relief brought as an OSC pursuant to California Rules of Court, rule 1249⁸ and Family Code section 290.⁹ According to Husband, the purpose of the OSC was to bring the property issues to a conclusion.

8 At the time of the proceedings in this case, former California Rules of Court, rule 1249 provided: "`In the exercise of the courts jurisdiction pursuant to the Family Code, if the course of proceedings is not specifically indicated by statute or these rules, any suitable process or mode of proceeding may be adopted by the court which appears conformable to the spirit of the Family Code and these rules." The rule was renumbered Rule 5.140 and amended, effective January 1, 2003. (Historical Notes, 23 pt. 2 Wests Ann. Codes, Rules (2003 supp.) foll. rule 5.140, p. 158.)

9 Family Code section 290 provides: "Subject to Section 291, a judgment or order made or entered pursuant to this code may be enforced by the court by execution, the appointment of a receiver, or contempt, or by any other order as the court in its discretion determines from time to time to be necessary."

Husband asserted that the January 1997 settlement agreement was of no account because Wife, "with her own advantage in mind, broke the contract . . . and [Wife] should be responsible for the direct and foreseeable consequences of her breach, as well as her subsequent maneuverings." Husband contended that Wife took advantage of the delay in getting the stipulated judgment signed to go into bankruptcy, thereby shoving all of the debt onto Husbands plate and forcing him into bankruptcy, too. Husband claimed that his bankruptcy plan provided that he could access his Lockheed pension and 401K funds if necessary to save the Gum Drop property from foreclosure. In addition, the initiation of the bankruptcy proceedings placed an automatic stay on the ability of his creditors to reach his property. Husband argued that Wife knew he was in bankruptcy and was familiar with the nature of a stay because of her own bankruptcy. However, she nonetheless obtained a default judgment against him and placed a hold on his pension and 401K accounts to satisfy her judgment.

Shortly after Wife obtained her judgment, the Gum Drop property went into foreclosure. Husband attempted to access his pension funds to prevent a foreclosure and was told he could not do so because the account had been frozen to satisfy Wifes judgment. On June 8, 1999, Husband asked Wife, through her attorney, to lift the freeze on the funds so that Husband might access them and save the Gum Drop property from foreclosure. The request was made after Husbands motion to set aside the default judgment was filed, but before it was heard. Wife did not take any action. By the time the motion was heard and Husband was granted relief, he had lost the house. Husband alleged that but for Wifes actions, he would still own the house.

At trial, there was testimony the after filing for divorce, Wife bought a house in San Jose. She withdrew between $46,000 and $58,000 from her 401K for the down payment. Although she was aware of the automatic restraining order in family law cases that prohibits the parties from buying, selling, or transferring property, she did not obtain the courts permission to make that withdrawal. She believed she could buy a house in spite of the restraining order because it was necessary to acquire a home for her children. After obtaining a judgment of dissolution from Husband, Wife remarried and then divorced her second husband. Before the property issues in this case were resolved, Wife settled the property issues in her second divorce and purchased a second home.

Husband asked the court to award him $170,000 to account for the difference between the value of the property at the time of trial in 2002 ($450,000) and the amount it sold for in 1999 ($ 280,000). Husband also asked for $14,897.50 he had paid to store his property and Wifes property since 1996, plus sanctions on account of Wifes conduct in the amount of $40,000. The sanctions request was based in part on the amount Husband had paid in fees to his family law attorney and his bankruptcy attorney, as well as amounts previously paid to Wifes attorney as discovery sanctions. Husband also asked the court to find that each party was entitled to retain the personal property in his or her possession and to terminate the parties rights to spousal support.

Wife argued that the January 1997 settlement agreement was vague and unenforceable and that she had complied with all of the terms of the agreement. She asserted that Husband would have had difficulty holding onto the house regardless of whether she had tied up his pension plan, because he was overextended financially and did not make enough money to cover the house payments. She also claimed that she had acted on the advice of counsel, that she had merely followed a court order, and that there was insufficient evidence that she had violated the bankruptcy stay. She argued that Husbands pension plan would have been unavailable regardless of her actions, since it was subject to the QDRO proposed in the settlement agreement and that the standard family law restraining order precluded Husband from using his 401K to finance his bankruptcy. She asserted that any obligation she may have had toward Husband was extinguished by her bankruptcy. She contended that Husband was barred from relief by unclean hands and laches and asserted a variety of procedural defects.

Order On OSC Regarding Property Settlement

After three days of hearings, the court entered an order finding that Wife had "engaged on a course of action designed to cause unnecessary harm to [Husband]." The court found that Husbands bankruptcy plan provided that Husband could draw funds from his pension plan to save his house from foreclosure. The court noted that the initiation of bankruptcy proceedings "automatically stays the ability of creditors to reach the bankruptcy applicants property" and that Wife, with knowledge of the stay, attacked Husbands pension funds by obtaining a default property judgment. The court found that Wifes "conduct . . . with respect to property was a willful and malicious attempt to avoid the normal consequences of a marital dissolution action" and that Husband was not barred by "unclean hands and that all of his actions were justified by the actions of [Wife]."

The court awarded Husband $170,000 representing the difference between the value of Gum Drop on the date of the hearing and the amount it sold for in 1999. The court ordered that Wifes pension and 401K plans at Lockheed "be QDROd," but made no order regarding Husbands pension and 401K.¹⁰ The court ordered that each party retain "all personal property now in their possession" and denied Husbands request for reimbursement of the storage fees. The court terminated the "ability of either party to seek spousal support . . . ." The order provided that all amounts awarded "are considered to be in the nature of a spousal support obligation" and awarded Husband post-judgment interest at the rate of 10 percent per annum. The court ordered each party to pay his or her own fees and costs. It also awarded Husband "an attorneys fee sanction" pursuant to Family Code section 271 and ordered that the amount of the sanction may be determined at a further hearing.¹¹

10 There is no evidence in the record regarding the value of either Husbands or Wifes 401Ks and pension plans.

11 Nothing in the record indicates whether further hearings were held on the attorney fee issue or whether any fees were awarded as sanctions. Wife does not assert any claim of error relating to the award of the attorney fee sanction.

The court entered a wage and earnings assignment order for spousal support, garnishing Wifes wages at the rate of $1,690 per month to cover "spousal support arrearages" of $170,000, the amount of the judgment. Wife filed a motion for reconsideration, which was denied. Wife appeals.

STANDARD OF REVIEW

We review a ruling dividing property under the abuse of discretion standard. (In re Marriage of Quay (1993) 18 Cal.App.4th 961, 965.) Factual findings are upheld if supported by substantial evidence. (Ibid.)

DISCUSSION

I. Procedure for Enforcing Settlement Agreement Under Code of Civil Procedure Section 664.6

Wife argues that the trial court erred because it never determined the validity of the settlement agreement and that the court should have enforced the agreement under Code of Civil Procedure section 664.6 ¹² (hereafter section 664.6). She asserts that the court should have upheld the work of the pro tem judge and supported the settlement agreement.

12 Code of Civil Procedure section 664.6 provides: "If parties to pending litigation stipulate, in a writing signed by the parties outside the presence of the court or orally before the court, for settlement of the case, or part thereof, the court, upon motion, may enter judgment pursuant to the terms of the settlement. If requested by the parties, the court may retain jurisdiction over the parties to enforce the settlement until performance in full of the terms of the settlement."

We find it curious that Wife now argues that the settlement agreement should have been enforced, since she argued vehemently against its enforcement in the trial court. There, she contended that the settlement agreement was void and unenforceable, that Husbands OSC was procedurally defective on a number of grounds, that Husband could not ask the court to modify the terms of the settlement agreement, that the penalties Husband requested were not authorized by law, and that she had done nothing wrong to merit the imposition of a penalty. She did not once argue in favor of enforcing the settlement agreement. Generally, new theories are not reviewable on appeal. (Brown v. Boren (1999) 74 Cal.App.4th 1303, 1316.) We shall nonetheless exercise our discretion to review Wifes section 664.6 arguments, to the extent that such review assists us in understanding the procedure employed in this case.

A trial court may enter judgment pursuant to the terms of a stipulated settlement agreement. (§ 664.6.) Section 664.6 was enacted to provide a summary procedure for specifically enforcing settlement agreements without the need for a new lawsuit. (Weddington Productions, Inc. v. Flick (1998) 60 Cal.App.4th 793, 809 (Weddington).) In order for a settlement agreement to be enforceable under the procedure set forth in section 664.6, it must either be entered into orally before the court or be in writing and signed by the parties. (§ 664.6; Weddington, supra, 60 Cal.App.4th at p. 810.)

"In acting upon a section 664.6 motion, the trial court must determine whether the parties entered into a valid and binding settlement of all or part of the case. In making this determination, trial judges, in the sound exercise of their discretion, may receive oral testimony or may determine the motion upon declarations alone. [Citation.]" (Corkland v. Boscoe (1984) 156 Cal.App.3d 989, 994.) The judge hearing a section 664.6 motion may receive evidence, determine disputed facts, interpret the terms of the settlement agreement, and enter judgment in accordance with the terms of the settlement agreement. (Ibid.; Fiore v. Alvord (1985) 182 Cal.App.3d 561, 565-566; see also Jones v. World Life Research Institute (1976) 60 Cal.App.3d 836, 840.) However, while the court may interpret the terms of the parties settlement agreement, "nothing in section 664.6 authorizes a judge to create the material terms of a settlement, as opposed to deciding what terms the parties themselves had previously agreed upon." (Weddington, supra, 60 Cal.App.4th at p. 810.)

The settlement agreement in this case met the procedural requirements for enforcement under section 664.6, since it was in writing and had been signed by both Husband and Wife. However, Husbands OSC did not seek enforcement of the settlement agreement pursuant to section 664.6. Although the OSC asked for enforcement of the settlement agreement, it did not even mention section 664.6. In the papers filed in support of the OSC, Husband asked for "entry of a property judgment based upon [the] 1/30/97 settlement agreement as well as enforcement/equalization of the agreement." (Italics added.) At the beginning of the hearing, Husbands counsel told the court that the OSC was not a motion under section 664.6; that it was a request for equitable relief pursuant to California Rules of Court, rule 1249 and Family Code section 290.¹³

13 See footnotes 8 and 9, ante.

As detailed in Husbands declaration in support of the OSC and Husbands closing brief, Husband wanted to obtain a property judgment based on the settlement agreement and to "equalize[]" the terms of the settlement agreement to "take into account what actually happened in real life" during the almost five-year period between the date the settlement agreement was signed and the date the OSC was set for hearing. Husbands declaration addressed each of the 17 paragraphs of the settlement agreement, advised the court as to the status of the property at issue and whether the settlement agreement had been complied with, and proposed modifications of some of the terms. For example, under the settlement agreement, Wife was to quitclaim any interest she had in the Gum Drop property to Husband. Husband advised the court that he had received the deed and asked for $170,000 to account for the difference in the value of the property at the time of the hearing and the price it sold for in 1999. Although the settlement agreement provided that Husband would be responsible for all storage fees, Husband asked for $14,897.50 to cover the storage costs he incurred because Wife had never retrieved her property. While the settlement agreement provided that both parties pensions and 401Ks from Lockheed would be subject to a QDRO, Husband asked that only Wifes pension and 401K be "QDROd."

Under section 664.6, the court only had the power to enter judgment in accordance with the terms of the settlement agreement and could not make the modifications Husband requested. (Weddington, supra, 60 Cal.App.4th at p. 810.) That is most likely why Husband sought equitable relief rather than enforcement of the settlement agreement under section 664.6. Since Husband did not seek relief under section 664.6, there is no merit to Wifes contentions regarding the courts alleged failure to enforce the settlement agreement under that provision. Furthermore, since Wife argued against enforcement of the agreement in the trial court, for the purpose of this appeal, she has waived any claim that the court should have enforced the agreement in accordance with section 664.6.

II. Other Procedural Mechanisms Available for Enforcement of the Settlement Agreement

"The statutory procedure for enforcing settlement agreements under section 664.6 is not exclusive. It is merely an expeditious, valid alternative statutorily created. (Kilpatrick v. Beebe (1990) 219 Cal.App.3d 1527, 1529 . . . .) Settlement agreements may also be enforced by motion for summary judgment, by a separate suit in equity, or by amendment of the pleadings to raise the settlement as an affirmative defense." (Nicholson v. Barab (1991) 233 Cal.App.3d 1671, 1681.) A request for equitable relief by motion in an existing action has also been held proper. (Gregory v. Hamilton (1978) 77 Cal.App.3d 213, 219.) Thus, the equitable motion filed by Husband may provide another avenue for enforcing the parties settlement agreement. The question then becomes whether the trial court, in entering a property judgment pursuant to an equitable request for enforcement, had the authority to modify the terms of the settlement agreement.

III. Courts Authority to Modify Property Settlement Agreement

Wife argues, "[E]ven where there are changed circumstances, the court has no jurisdiction to modify a property division." Wifes broad assertion is incorrect.

Courts favor property settlement agreements. However, they are subject to the scrutiny and approval by the courts. They are usually approved by the court and incorporated into the judgment. (11 Witkin, Summary of Cal. Law (9th ed. 1990) Husband & Wife, § 294, p. 331.) After the judgment becomes final, the agreement may only be attacked for extrinsic fraud or mistake. (Ibid.) It has long been the law in this state that the trial court does not have jurisdiction to modify a property division that has been entered as a judgment. (Id., § 302, pp. 338-339 citing Ettlinger v. Ettlinger (1935) 3 Cal.2d 172, 178; Adams v. Adams (1947) 29 Cal.2d 621, 625 (Adams) and other cases.) A "pure property settlement agreement" (one that does not contain any provisions regarding support) that is "approved by the court, entered in the judgment, and final by the lapse of time for review, is not subject to modification. [Citations.]" (11 Witkin, supra, § 302, p. 338.)

The settlement agreement in this case was arguably approved by the court when the judge pro tem wrote "It is so ordered" on the memorandum." However, the agreement was never entered as a judgment. The rule cited above therefore does not apply.

Wife cites a number of cases that hold that a property judgment cannot be modified, including Dexter v. Dexter (1954) 42 Cal.2d 36, In re Marriage of Carletti (1975) 53 Cal.App.3d 989, Biagi v. Biagi (1965) 233 Cal.App.2d 624, Wunch v. Wunch (1960) 184 Cal.App.2d 527,Darter v. Magnussen (1959) 172 Cal.App.2d 714, and Broome v. Broome (1951) 104 Cal.App.2d 148. Wifes reliance on these cases is misplaced since in each of the cases, the parties property settlement agreement had been incorporated into a judgment or interlocutory decree. As Wife aptly notes, this case is distinguishable from the cases she cites because, although the parties had signed a settlement agreement, that agreement had not been entered as a judgment.

Wife argues that the "most analogous" case to the situation presented here is In re Marriage of Olson (1980) 27 Cal.3d 414.¹⁴ The parties in Olson went to trial regarding their property division. The trial court announced a tentative decision and ordered the husbands attorney to prepare a judgment. After the court announced its tentative decision, but before the judgment was prepared, the family home, which had been awarded to the wife, was lost to foreclosure. The trial court denied the wifes motion to reopen the evidence and recalculate the property division. The California Supreme Court reversed, holding that the proceedings should have been reopened to recalculate the property division. Olson holds that until entry of judgment, a post-trial order for the division of property can be modified. However, it does not address the situation presented here, where the parties entered into a settlement agreement that provided that the settlement would be reduced to a judgment, but never obtained a judgment.

14 After arguing that Olson was "most analogous" to the situation presented here, Wife attempts to distinguish the case on three grounds that are not relevant to the discussion here.

As noted previously, property settlement agreements are favored. "[I]f made without violation of the [parties] confidential relationship, and no other legal or equitable ground for rescission or reformation is shown, it is binding on the parties and the court without [the courts] express approval." (11 Witkin, Summary of Cal. Law, supra, Husband & Wife, § 296, pp. 333, italics added.) "Such agreements are usually made with the advice of counsel after careful negotiations, and the courts, in accord with legislative sanction, prefer agreement rather than litigation. [Citation.] When the parties have finally agreed on the division of their property, the courts are loath to disturb their agreement except for equitable considerations. A property settlement agreement, therefore, that is not tainted by fraud or compulsion or is not in violation of the confidential relationship of the parties is valid and binding on the court. [Citations.]" (Adams, supra, 29 Cal.2d at p. 624; italics added.)

In this case, both Husband and Wife repudiated the settlement agreement. Husband told the court it was of no account and Wife argued against its enforcement. In addition, Husband submitted equitable reasons, based on Wifes conduct after the settlement agreement was signed, for the court to rescind or reform the settlement agreement. Husband had argued that wife had "abandoned an enforceable agreement, confused that issue by seeking further [early disposition conferences] in the name of "clarification", [sic] got remarried, violated the automatic stay in this matter by withdrawing all sorts of retirement funds to purchase a home, sought the entry of an improper judgment in her favor that in and of itself was a violation of [Husbands] bankruptcy stay, refused to cooperate in allowing [Husband] not to lose a significant asset (the Gum Drop house) and completely forgot about a proper judgment once her improper one was set aside."¹⁵ We note also that, rather than reduce the agreed-upon settlement agreement to a judgment, Wife conducted extensive discovery on issues that had already been settled and then filed motions for discovery sanctions that ultimately included taking Husbands default based upon his failure to comply with the unnecessary discovery.

15 In light of the equitable reasons cited by Husband, we reject Wifes contention that the trial court was inappropriately punishing her for filing bankruptcy.

Wifes briefs do not address the propriety of reforming the settlement agreement in light of the equitable issues raised by Husband. She argues simply that the court had no jurisdiction to modify the settlement agreement, without addressing what occurred in this case. "The most fundamental rule of appellate review is that an appealed judgment or order is presumed to be correct." (Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group 2002) ¶ 8:15, p. 8-4 (Eisenberg).) The appellant has the burden of overcoming the presumption of correctness. (Id., ¶ 8:17, p. 8-5.) "Appellants burden includes the obligation to present argument and legal authority on each point raised. This requires more than simply stating a bare assertion that the judgment, or part of it, is erroneous and leaving it up to the appellate court to figure out why; it is not the appellate courts role to construct theories or arguments that would undermine the judgment and defeat the presumption of correctness. [¶] When appellant asserts a point but fails to support it with reasoned argument and citations to authority, the court may treat it as waived and pass it without consideration. [Citations.]" (Id., ¶ 8:17.1, p. 8-5, citing People v. Stanley (1995) 10 Cal.4th 764, 793 and other cases.) Since Wife does not address the issues of whether the trial court had authority to reform the settlement agreement on equitable grounds or the propriety of reforming the settlement agreement in this case, we conclude that these points have been waived.

IV. Courts Authority to Order an Unequal Division of Property

Wife also argues that the courts order ignores the basic premise of family law that requires that community property be divided equally without regard to fault, and that nothing in the law authorizes the trial court to punish one spouse in the division of property. These arguments are also without merit.

When property division issues are submitted to the trial court for decision, the court is required to divide the community estate equally between the parties, except as otherwise expressly provided by statute. (Fam. Code, § 2550; dElia v. dElia (1997) 58 Cal.App.4th 415, 424.) The equal division requirement applies without regard to fault, except as otherwise provided in the Family Code. (Hogoboom & King, Cal. Practice Guide, Family Law (Rutter Group 2003) ¶ 8:1000.5, p. 8-236 citing Diosdado v. Diosdado (2002) 97 Cal.App.4th 470, 474 (hereafter Hogoboom).)

"The parties, on the other hand, by written agreement or oral stipulation in open court, are free to divide their community estate in any fashion they wish and need not divide it equally." (In re Marriage of Cream (1993) 13 Cal.App.4th 81, 87.)

"The courts only role with regard to a proper stipulated disposition of marital property is to accept the stipulation and, if requested, to incorporate the disposition into the judgment." (Id. at p. 91.)

In addition, when the court determines the division of property, the Family Code recognizes limited circumstances under which the court need not effect an equal division of the community estate. (Hogoboom, supra, ¶ 8:1003, p. 8-236.) The only statutory exception that applies here is the exception stated in Family Code section 2602,¹⁶ which provides: "As an additional award or offset against existing property, the court may award, from a partys share, the amount the court determines to have been deliberately misappropriated by the party to the exclusion of the interest of the other party in the community estate." "Under California law, intra-spousal fiduciary obligations in the management and control of the community estate [citation] continue post-separation as to all activities affecting the other spouses property and support rights until the date of distribution of the community asset or liability in question [citation]." (Hogoboom, supra, ¶ 18:88.5, p. 18-37 citing Fam. Code, §§ 721, subd. (b), 1100, subd. (e), and 2102.) Deliberate mismanagement of community liabilities may also warrant an unequal allocation of the debts to the misappropriating spouse under section 2602. (Id., ¶ 8:1015, p. 8-240 citing In re Marriage of Partridge (1990) 226 Cal.App.3d 120, 125-127.) The trial court cited section 2602 as one of the bases for its order. In light of the above, there is no merit to Wifes contention that the trial court could only divide the community property equally.

16 All further statutory references are to the Family Code unless otherwise specified.

In spite of the trial courts citation of section 2602 in its order, Wife does not address the applicability of section 2602 to this case. She does not contend that the court should not have relied on section 2602, that it was inappropriate to make an award under section 2602, that her conduct did not amount to deliberate misappropriation or mismanagement, or that the amount awarded was excessive under case law interpreting section 2602. She argues only that none of the exceptions to the general rule mandating equal division of community property apply, including the exception for "sums deliberately misappropriated." Wife does not develop this argument further. Her briefs on appeal do not even mention section 2602 or any of the cases interpreting the statute. Wifes only argument with regard to section 2602 is that it does not apply. Again, Wife has the burden to provide this court with reasoned argument and authority as to each claim of error raised. We conclude that any potential claim of error related to the courts application of section 2602 has been waived.

V. Husbands Request for Judicial Notice of Bankruptcy Court Ruling

Wife asserts that the trial court erred when it took judicial notice of findings of the bankruptcy court pursuant to a request in Husbands closing brief.

At trial, Husband asserted that Wife had violated the automatic stay in his bankruptcy action when she obtained the default judgment against him in the dissolution action. "With some exceptions, all proceedings against the debtor and the debtors property are stayed during the pendency of proceedings in bankruptcy. (11 U.S.C. § 362(a)(1) & (2).) The automatic stay is self-executing and is effective upon filing the bankruptcy petition. (See 11 U.S.C. § 362(a).)" (In re Marriage of Sprague & Spiegel-Sprague (2003) 105 Cal.App.4th 215, 219 (Sprague).) "Bankruptcy courts have the sole authority to determine the scope of the automatic stay imposed by 11 United States Code section 362(a), subject to federal appellate review. [Citation.]" (Id. at p. 219.) In addition, the bankruptcy court has exclusive jurisdiction to determine whether there has been a willful violation of a bankruptcy stay. (Abdallah v. United Savings Bank (1996) 43 Cal.App.4th 1101, 1109.)

Husband made an offer of proof and also testified that there was a proceeding in his bankruptcy action in which Wife and her attorney (Hammon) were found guilty of violating the automatic stay. The parties were ordered to return for further proceedings in the bankruptcy court to determine the amount of damages to be assessed as a result of the violation. However, Husbands bankruptcy action was dismissed before the hearing on damages was held. Wife recalled the hearing in which she and her attorney were charged with violating the automatic stay. However, she claimed the bankruptcy court never ruled on the alleged violation because Husbands bankruptcy action was dismissed before the court issued a ruling.

In a brief that was submitted after the close of evidence, Husband asked the court to take judicial notice of the audio tapes of the bankruptcy courts proceedings of February 8, 2000, in which the bankruptcy court allegedly found that Wife had knowledge of Husbands bankruptcy filing as early as March 12, 1998. Husbands attorney offered to make the tapes available to the court so that it could take judicial notice of the bankruptcy courts ruling.¹⁷ Wife did not object to the request for judicial notice in Husbands closing brief. In its "ORDER AFTER HEARING" the court found: "At [Husbands] February 8, 2000 Chapter 13 bankruptcy hearing, the judge ruled that [Wife] had knowledge of [Husbands] bankruptcy as of March 12, 1998."

17 Neither the tapes nor a transcript of the tapes are in the record submitted to this court.

Wife contends that the court erred in granting Husbands request for judicial notice because (1) it was made after the close of evidence; (2) it did not comply with the requirements of Evidence Code sections 452 and 455; and (3) it resulted in a denial of due process since the request for judicial notice was made in a closing brief to which Wife had no opportunity to respond. Wife did not raise any of these issues in her motion for reconsideration.

In our view, Wife has waived any claim of error relating to the request for judicial notice by failing to object in the trial court. Waiver will be implied where the appellant fails to bring the alleged error to the trial courts attention either by timely motion or objection. (Doers v. Golden Gate Bridge etc. Dist. (1979) 23 Cal.3d 180, 184-185; In re Marriage of Hinman (1997) 55 Cal.App.4th 988, 1002.) An appellate court generally will not "`"consider procedural defects or erroneous rulings, . . . where an objection could have been but was not presented to the [trial] court by some appropriate method . . . ."" (In re Dakota S. (2002) 85 Cal.App.4th 494, 501.) Wife could have objected to the request for judicial notice, either by filing a formal written objection or by letter brief to the court. Although Wife requested a statement of decision in a brief she filed in the proceedings, she did not pursue that request at the end of the proceedings. The procedure for statements of decision allows for the filing of objections by the parties. Wife also could have objected in her motion for reconsideration. She did nothing. We therefore conclude that she has waived any claim of error related to the request for judicial notice.

VI. Characterization of Property Award as Spousal Support

Wife asserts that the trial court erred when it characterized the property award in this case as spousal support and in so doing violated her rights under the Supremacy Clause of the United States Constitution, denied her equal protection of the law, and violated California community property law. Wife devotes almost half of the argument in her brief to this issue. Some of the points included under this heading raise more generalized claims of error and do not necessarily focus on the propriety of the order characterizing the award as spousal support. We shall address Wifes more general points first, then focus on the issues related to the claim of error in characterizing the award as spousal support.

A. Jurisdiction to Determine Whether Wife Had Violated Bankruptcy Stay in Husbands Bankruptcy Action

Wife argues that the trial court erred because it did not have subject matter jurisdiction to determine whether Wife had violated the automatic stay in Husbands bankruptcy action and asserts that the bankruptcy court had exclusive jurisdiction to make that determination. As to this point of law, Wife is correct. As noted previously, bankruptcy courts have the sole authority to determine the scope of the automatic stay and whether there has been a willful violation of the stay. (Sprague, supra, 105 Cal.App.4th at p. 219; Abdallah v. United Savings Bank, supra, 43 Cal.App.4th at p. 1109.) However, this rule does not dispose of the issue in this case.

At trial, Husband testified that the bankruptcy court had found that Wife and her attorney had violated the automatic stay in Husbands bankruptcy action. Rather than make an independent finding that Wife had violated the bankruptcy stay, the court relied on the bankruptcy courts finding in exercising its equitable power to order an unequal property division because of Wifes misappropriation or mismanagement of community assets. The court also relied on Husbands uncontroverted representation that the bankruptcy court had given him authority to pursue the issue of Wifes violation of the bankruptcy stay in the state court dissolution proceedings.¹⁸ Since the bankruptcy court authorized Husband to pursue this issue in state court and the state court relied on the bankruptcy courts finding, we conclude that the court did not act in excess of its jurisdiction when it found that Wife had violated the automatic stay in Husbands bankruptcy action. In addition, the trial courts order was based on a course of conduct that included, but was not limited to, Wifes violation of the bankruptcy stay. For these reasons, we reject Wifes claim that the trial courts order was in excess of its jurisdiction and thereby violated the Supremacy Clause.

18 As we have said, Husband had filed a motion in the bankruptcy court requesting sanctions for Wifes violation of the automatic bankruptcy stay. The bankruptcy court conducted hearings on the issue of whether there had been a violation of the stay and found Wife liable. However, before the court assessed damages for the violation, Husbands bankruptcy was dismissed for failure to make the payments to the bankruptcy trustee. Husband immediately refiled his bankruptcy action. According to Husband, the bankruptcy court made an order in the second proceeding that authorized Husband "`to prosecute or continue to prosecute his claims against [Wife] . . . in the appropriate forums without the need for any further action of the bankruptcy court . . . ."

B. Effect of Post-Discharge Stay in Wifes Bankruptcy Action

Wife also asserts that the trial court erred because the "permanent stay" imposed when she was discharged from bankruptcy pursuant to 11 U.S.C. § 524 barred Husbands claims. She contends that if Husband had any claims against her, they should have been filed in her bankruptcy.

"Property settlement payments ordered in dissolution proceedings to effect the equitable division of community property, as opposed to payments for spousal or child support, are dischargeable in bankruptcy. [Citations.]" (In re Marriage of Lynn (2002) 101 Cal.App.4th 120, 125, citing In re Siragusa (9th Cir. 1994) 27 F.3d 406, 407 (Siragusa); 11 U.S.C. §§ 523(a)(5), 727.) The discharge of a debt in bankruptcy operates as an injunction prohibiting a creditor thereafter from taking any action to collect or recover the debt. (Ibid.)

The right to claim discharge only applies to pre-petition debts. (11 U.S.C. §727(b).) In order to determine whether the courts award violated the injunction that resulted after Wife was discharged from bankruptcy, we first determine whether the amounts awarded to Husband by the trial court can be characterized as pre-petition debts that were subject to discharge. The trial court awarded Husband: (1) $170,000 for the loss of the house and (2) a QDRO of Wifes pension accounts.

As to the amounts awarded for the loss of the house, Wife filed for bankruptcy in August 1997; the sale of the Gum Drop property did not occur until mid-1999. Wifes conduct that resulted in the loss of the house occurred after she filed for bankruptcy. Thus, the damages awarded for the loss of the house cannot be characterized as a pre-petition debt that was subject to the injunction resulting from Wifes bankruptcy discharge.

As to the award of a QDRO of Wifes pension plans, the analysis is more problematic. A state court domestic relations judgment awarding the non-debtor spouse a share of the debtor-spouses unpaid pension benefits and ordering the plan to pay the non-debtor spouse his or her share directly, does not create a dischargeable debt. (Hogoboom, supra, ¶ 18:87.1, p. 18-34 citing In re Gendreau (9th Cir. 1997) 122 F.3d 815, 818-819 and In re Lowenschuss (9th Cir. 1999) 170 F.3d 923, 930-931.) The non-debtor spouses claim is against the pension plan and therefore is not a personal liability of the debtor that can be discharged in bankruptcy. Furthermore, the non-debtor spouses ownership interest in the pension, which has been confirmed by the pre-petition dissolution judgment, cannot be defeated by the debtor spouses subsequent bankruptcy filing. (Ibid.) The problem in this case is that the parties settlement agreement, in which they agreed that each party was entitled to a QDRO of the other partys pension plan, was never reduced to a judgment. Thus, the rule stated in In re Gendreau does not apply.

We are not aware of any case that addresses the situation presented here and Wife has not cited any. The Hogoboom treatise suggests that until such time as a pension division obligation in a settlement agreement has been reduced to a judgment, there is a risk that the obligation may be discharged in the plan participants bankruptcy. (Hogoboom, supra, ¶ 18:87.4, p. 18-36.)

Another problem is that nothing in the record indicates whether the obligation created by Wifes agreement to a QDRO of her pension plan in the martial settlement agreement was discharged in her bankruptcy, whether that issue was abandoned by the bankruptcy court, or whether Wifes pension plans were exempted from the bankruptcy estate. The record does not indicate whether Wifes pension plans were ERISA-qualified plans. If they were, they would not have been part of the bankruptcy estate and therefore would not have been subject to an injunction upon discharge. (Hogoboom, supra, ¶ 18:54.1, pp. 18-17 to 18-18.) Our analysis is hampered by the fact that Wife does not address this issue in her brief on appeal. She argues simply that all of Husbands claims were discharged when she was discharged from bankruptcy. She does not distinguish between the different items awarded to Husband or cite or discuss any of the cases that examine the issue.

Nonetheless, given the lack of evidence relating to the question of whether Wifes obligation to share her pension and 401K plans with Husband was discharged in bankruptcy, we conclude that the court abused its discretion in finding that Husband was entitled to a portion of Wifes pension and 401K plans and ordering a QDRO of those plans and that the matter should be remanded to the trial court to determine whether this obligation was discharged, exempted from the bankruptcy estate, or abandoned by the bankruptcy court. After making this threshold determination, the court may then make an appropriate order regarding the disposition of this asset.

C. Characterization of Award as Spousal Support

Wife asserts that the court erred when it characterized its award as spousal support. According to Husband, Wife had stated that she would not comply with any judgment in his favor and would just file for bankruptcy again. Wife testified that she had no plans to file a second bankruptcy. In his closing brief, Husband asked for an order finding the courts award to be in the nature of spousal support. The trial court granted the request.

Support and property issues are separate and distinct. Generally, support cannot be awarded in lieu of property or to compensate for an unequal division of property. (Hogoboom, supra, ¶¶ 6:980, 6:981, p. 6-352.5.) Subject to the exception stated in 11 U.S.C. § 523(a)(15),¹⁹ property settlement and property division debts are dischargeable in bankruptcy. (Id., ¶¶ 18:81-18:83.1, pp. 18-28 to 18-29.) On the other hand, child support and spousal support obligations are not dischargeable in bankruptcy. (11 U.S.C. § 523(a)(5).) In addition, debts "in the nature of support," debts that serve a predominantly support function, are not dischargeable. Whether a debt is "in the nature of support" is a question of federal bankruptcy law, not state law. (Hogoboom, supra, ¶¶ 18:71, 18:72, pp. 18-20.3 to 18-21.)

19 Pursuant to 11 U.S.C. § 532(a)(15), a property division or property settlement debt is dischargeable only if the debtor spouse reasonably needs the money to support himself or herself and his or her dependants or to operate a business or paying the debt would be a greater detriment to the debtor spouse that it would be a benefit to the nondebtor spouse. (Hogoboom, supra, ¶ 18:81, p. 18-28.) This provision is not self-executing. The nondebtor spouse must raise the issue by initiating adversary proceedings in the bankruptcy court. (Id., ¶ 18:83.1, p. 18-29.)

While federal law controls the determination of whether a debt is in the nature of support, state and federal courts have concurrent jurisdiction to decide the issue. (Siragusa, supra, 27 F.3d at p. 408.) In determining whether a particular debt is dischargeable, the bankruptcy court is not bound by the label given a particular debt by the parties or the state court in its order. (Hogoboom, supra, ¶ 18:72, p. 18-21, citing In re Sternberg (9th Cir. 1996) 85 F.3d 1400, 1405, overruled on other grounds in In re Bammer (9th Cir. 1997) 131 F.3d 788, 792, and In re Chang (9th Cir 1998) 163 F.3d 1138, 1140.) In making its independent determination regarding the nature of the debt, the bankruptcy court may look to state law for guidance on the question of whether the debt serves a support function. (Hogoboom, supra, ¶ 18:72.1, p. 18-21.) When both the bankruptcy and family law actions are pending at the same time, the bankruptcy court has discretion to defer to the state courts determination in the interest of comity. (Siragusa, supra, 27 F.3d at pp. 408-409.)

Husband contends that the court did not err in characterizing its award as spousal support, since its order was made merely as a security device to insure payment of the property award. Husband relies on In re Marriage of McGhee (1982) 131 Cal.App.3d 408 (McGhee). In McGhee, the court entered a judgment of dissolution based upon oral stipulations of the parties. The parties had stipulated that the wife would receive a share of the husbands military retirement benefits and that that they would waive their rights to spousal support. However, for any month in which the wife did not receive her share of the retirement benefits, she was to be awarded spousal support in an amount equal to the retirement benefits she had not received. (Id. at pp. 410-411.) The husband failed to pay the wife her share of retirement benefits and the wife obtained an order for spousal support in an amount equal to the unpaid benefits.

The husband challenged the order, arguing that federal law prohibited the garnishment of military pensions, except for spousal support obligations, and that the court should look to the source of the obligation (the fact that it was part of the property award) and not the label given to it by the judgment. (McGhee, supra, 131 Cal.App.3d at p. 412.) The court concluded that there was no violation of the support statutes, because the alternative award was not made for a support purpose and was simply "an agreed-upon security device" that the parties were free to adopt to insure that the wife had access to her share of the retirement benefits. (Id. at pp. 412-415.)

Wife argues that McGhee does not apply because the parties in McGhee had stipulated that any default in the retirement payments would give rise to a support obligation, whereas there is no such agreement here. We agree that this case is distinguishable on that basis, since the discussion in McGhee focused on the rights of the parties to agree on a mechanism to insure enforcement of their property settlement. (McGhee, supra, 131 Cal.App.3d at pp. 412-415.)

The parties do not cite and our independent research has not disclosed any authority that addresses the validity of a court order that holds that the amounts awarded in a property division are in the nature of support as a means of insuring the prevailing partys ability to enforce the order, where there is no agreement between the parties to that effect. While the trial court had jurisdiction to determine whether its order was in the nature of support, we are not persuaded that it had the authority to make that determination as a means of insuring the enforceability of its award. We must therefore determine whether there was some other basis in fact for characterizing the award as spousal support. The amounts awarded consisted of $170,000 for the loss of the house and a share of Wifes retirement and 401K accounts. The court also terminated the ability of either party to ever seek spousal support. The court did not make any findings regarding the parties needs, ability to pay or any of the other factors relevant to a determination of spousal support under section 4320. We therefore conclude that the portion of the order finding that the award was in the nature of support is not supported by substantial evidence.

In our view, the appropriate remedy is to strike paragraph 10 of the order, in which the court found that the amounts awarded were in the nature of support. Since our conclusion is not binding on the bankruptcy court, nothing here is intended to preclude the bankruptcy court from finding, in future proceedings on an adequate record, that this order was in the nature of support or nondischargeable on other grounds.

Since we conclude that the court erred in characterizing the award as spousal support, we shall not reach Wifes contention that that part of the order violated her rights to equal protection of the law.

VII. Exclusion of Evidence of Prior Notices of Default on Gum Drop Property

Wife claims the trial court erred when it excluded evidence of prior notices of default on the Gum Drop property. Toward the end of trial, Wife offered 10 pages of notices of default on Gum Drop that were allegedly issued between March 1995 and November 1997.²⁰ Husband objected on the ground of relevance. Wife argued that the documents were relevant to the issue of causation, i.e., whether the foreclosure was due to the actions of Wife, as opposed to other factors. The court sustained Husbands objection.

20 The documents were not marked and are not in the record on appeal.

We review a trial courts ruling regarding the admissibility of evidence, including rulings on the basis of relevance, for an abuse of discretion. (City of Ripon v. Sweetin (2002) 100 Cal.App.4th 887, 900.) Evidence is relevant if it has any tendency in reason to prove a disputed material fact. (Evid. Code, § 210.) Wife sought to introduce evidence that the parties had defaulted on their mortgage payments on more than one occasion between March 1995 and November1997 to demonstrate that there was no causal connection between her conduct and the loss of the Gum Drop property. She testified that, during the marriage, the parties always had trouble making the payments. Unfortunately, we cannot evaluate the relevance of the documents, because they were never marked and are not part of the record before this court. In order to demonstrate error, it was up to appellant Wife to provide us with a complete record, including those documents excluded from evidence. (Eisenberg, supra, ¶ 8:17, p. 8-5.) Based on the brief description of the documents in the reporters transcript, it appears some of the notices were received before the parties separated and some were received after the date of separation. Since the documents are not before us, we do not know how many were received in either time frame. In addition, it was clear from Husbands testimony that he had cured all prior defaults, that the bankruptcy court had provided him with a mechanism to cure the default in 1999 by allowing him to access his 401K, and that the only reason he was unable to cure the default in 1999 was because of the freeze Wife had placed on his 401K account. There was other evidence regarding husbands financial condition at the time the property went into foreclosure that related to Wifes causation argument. For these reasons, we cannot say that the trial court abused its discretion in excluding the notices of default.

VIII. Unclean Hands

Wife contends that the trial court erred when it found that Husband did not have unclean hands. Wife argued that Husband had unclean hands because he did nothing to help obtain a judgment after appearing at the early disposition conference. Since the court ordered Wifes attorney to prepare the judgment twice and in light of Husbands efforts to finalize the resolution of the parties property settlement after the default judgment was set aside, the courts finding that Husband did not have unclean hands is supported by substantial evidence. Wifes reliance on Superior Court of Santa Clara County, Local Rules, rule 3 ²¹ is misplaced, since it applies to the preparation of orders after law and motion proceedings, not the preparation of a stipulated judgment after the parties have entered into a settlement agreement.

21 We granted Wifes request to take judicial notice of the Superior Court of Santa Clara County, Local Rules, rule 3, which provides in relevant part: "Unless otherwise ordered by the Court, the moving attorney or self-represented party shall prepare a written order after hearing following any hearing in the law and motion calendar and shall mail the proposed order to the opposing attorney or self-represented party for approval . . . ."

IX. Due Process

Under the heading "Conclusion" at the end of her brief, Wife asserts that the court violated her right to due process under the United States and California Constitutions when it turned an OSC for the enforcement of a settlement agreement into a full property trial. She contends that she had no notice that she was involved in a property trial.

It is a fundamental concept of due process that a judgment cannot be entered unless the party against whom the judgment has been entered has been given proper notice and an opportunity to defend. (In re Marriage of Lippel (1990) 51 Cal.3d 1160, 1166.) Similarly, a motion must state the nature of the order being sought and the grounds for its issuance. (Cal. Rules of Court, rule 311(a).) Generally, the trial court may only consider claims stated in the notice of motion. (Luri v. Greenwald (2003) 107 Cal.App.4th 1119, 1125.) An omission in the notice of motion may be overlooked if the supporting papers make clear the relief sought and the grounds upon which the relief is sought. (Ibid.) There was no due process violation here. Husbands notice of the OSC asked for "a property judgment based upon a 1/30/97 settlement agreement as well as enforcement/equalization of the agreement as more fully detailed in the attached declaration." The declaration addressed each of the 17 paragraphs in the settlement agreement and told the court in detail what Husband sought as to each point in the agreement.

A party may also waive notice by filing opposition to the original motion, appearing and arguing at the hearing on the matter, failing to request a continuance and failing to identify prejudice arising from the lack of notice. (Carlton v. Quint (2000) 77 Cal.App.4th 690, 697.) Wife filed four briefs in opposition to Husbands OSC request. She filed a responsive declaration and a supplemental brief before the first day of testimony, a brief in replication prior to the second day of evidence, and a closing brief after the third day of trial. The trial was conducted over the course of three days between March 15, 2002 and May 2, 2002. Wife was at trial each day and her counsel actively participated in the proceedings. Her closing brief responded to Husbands points and included proposed findings as to each of the 17 paragraphs in the settlement agreement. In light of this record, we perceive no due process violation.

X. Arguments Regarding Damages

A. Amount Awarded for the Loss of The House

As to the $170,000 awarded to Husband for the loss of the house, Wife argues that the award is both speculative and excessive. As noted above, we review a ruling dividing property under the abuse of discretion standard. (In re Marriage of Quay, supra, 18 Cal.App.4th at p. 965.) Factual findings are upheld if supported by substantial evidence. (Ibid.)

Wife contends that the trial courts conclusion that Husband would still have owned the property at the time of trial is speculative, since during the time between the foreclosure sale in 1999 and the trial in 2002, Husband might have sold the property, might have let the property degenerate, or might have lost it to foreclosure. Husband testified that he would not have sold the Gum Drop property. He admitted that he did not have the money to pay the mortgage out of his regular income and testified that the encumbrances on the property were $2,200 per month and that the tenants paid only $1,500 to $1,700 per month in rent. However, he also testified that the bankruptcy court had authorized him to use the funds in his 401K to prevent a foreclosure²², that if he had had access to his 401K funds, he would have been able to bring the mortgage current, and that he had family care and savings accounts that he could access to pay the mortgage. Unfortunately, the record does not disclose how much money Husband had in his 401K account or how much he was in arrears on the mortgage when the property went into foreclosure. Husband had only $600 to $700 in his savings account at that time. There was also evidence that prior to the foreclosure, Husband failed to make several of the payments due under his bankruptcy plan, that he continued to have difficulty making the trustee payments after he lost the house, and that his first bankruptcy was dismissed for failure to make the trustee payments.

22 The two mortgage holders on the Gum Drop property had filed for relief from the stay in Husbands bankruptcy.

"When a trial courts factual determination is attacked on the ground that there is no substantial evidence to sustain it, the power of an appellate court begins and ends with the determination as to whether, on the entire record, there is substantial evidence, contradicted or uncontradicted, which will support the determination, and when two or more inferences can reasonably be deduced from the facts, a reviewing court is without power to substitute its deductions for those of the trial court. If such substantial evidence be found, it is of no consequence that the trial court believing other evidence, or drawing other reasonable inferences, might have reached a contrary conclusion. [Citations.]" (Bowers v. Bernards (1984) 150 Cal.App.3d 870, 873-874.) Although the evidence that Husband was having difficulty making the payments on the property suggested that he would have lost the property even if Wife had not frozen his 401K, there was other evidence from which the trial court could have reasonably inferred that he would have retained the property if he had only had access to his 401K. We therefore conclude that there was substantial evidence from which the court could have concluded that Husband would have continued to own the property in 2002.

Wife also claims the court applied the wrong measure of damages and proposes a formula under which the total amount awarded for the loss of the house would have been $25,000. We decline to address this argument since this measure of damages and calculation were not argued in the trial court and have therefore been waived.

Wife also challenges the trial courts finding that the Gum Drop property was worth $450,000 at the time of trial. Husband had relied on the expert testimony of a real estate appraiser who testified that the property was worth $450,000 in good condition in January of 2001, that the value had dropped thereafter, that the value was back up to $450,000 by March 2002, and that house would be worth between $425,000 and $460,000 in April 2002, depending on its condition, and that property values would continue increasing until June 2002. The appraiser also testified that he rated the condition of the property when it sold in 1999 as a "2" on a scale of 1 to 10, that $15,000 to $20,000 in repairs would have put the house in the top category, and that Husband had the money in his 401K to make the repairs, but could not access the funds. Wife argues that the property was in terrible condition and that there was no evidence as to how much of the increase in the propertys value was due to the rise in the market, as opposed to the condition of the property. Wife is asking us to reweigh the evidence, which is not our role. In our view, substantial evidence supports the trial courts finding that the property was worth $450,000 at the close of evidence in May 2002.

B. Arguments Regarding Other Types of Property

Wife contends that the trial court erred in awarding the parties the personal property in their possession, which included Wifes property that was still in Husbands storage unit, the proceeds of the bonds that Husband had sold, and the equipment of the photography business. Wife asserts that these awards were arbitrary and that the court erred because there was no evidence as to the value of any of these assets, other than the bonds. Wife also argues that the court erred when it did not order a QDRO of Husbands "Lockheed pension." Wife urges this court to remand for a full property trial on the nature and extent of the community property. Husband does not respond to these points.

The principal problem with Wifes argument, as with much of her brief, is that she makes a bald assertion of error without any explanation or citation to authority. As noted previously, in order to rebut the presumption of correctness, Wife must support each of her claims of error with reasoned argument and citation to authority; otherwise the court may treat the point as waived. (People v. Stanley (1995) 10 Cal.4th 764, 793.) Wifes burden requires more than stating a bare assertion that the judgment is erroneous and leaving it to this court to figure out why. It is not our role to construct theories or arguments that would undermine the judgment and defeat the presumption of correctness. (Eisenberg, supra, ¶ 8:17.1, p. 8-5.) Although Husband does not have the same burdens on appeal as Wife, his failure to address the points raised in Wifes brief was of no aid to this court. The respondent should address each point raised by the appellant, even if the point is meritless and easily rebutted by a sentence or two. (Id., ¶ 9:68, p. 9-20.)

We shall nonetheless address Wifes various points. As to the personal property that had been allocated to Wife at the mediation in 1996 but remained in storage, we conclude that the court was within its discretion in ordering that the property remain in Husbands possession as a penalty under section 2602 for Wifes alleged mismanagement of that property by failing to retrieve it for over five years after the parties had agreed on a mechanism for doing so. Husband had alleged that if Wife had picked up her property he could have decreased the size of his storage space, thereby reducing the storage expense.

As to the photography business, Wife argued in her closing brief that Husband had not put the photography business in issue. Furthermore, she did not claim any of the assets of the business. Husband testified that he had not operated the business since 1997 and that both parties had kept some of the equipment. The record does not disclose whether the photography equipment was in storage with the other property. There was no evidence of the value of the photography equipment or how much of it each party possessed. In our view, the court was within its discretion under section 2602 to order that each party retain the photography equipment in his or her possession.

As to the bonds, we conclude that the trial court abused its discretion when it failed to award Wife her community property interest in the bonds. The court should have determined whether the bonds were a community asset and the value of the bonds to the community and awarded Wife one-half of the communitys interest in the bonds. There is no evidence that Wifes misconduct in managing the parties community assets resulted in any loss of the bonds. In fact, Husband had cashed in the bonds before the parties entered into their property settlement.

As for Husbands 401K and retirement accounts, assuming Husbands obligation to provide Wife with her community property share of his retirement accounts and 401K was not subject to discharge in his bankruptcy, the trial court erred in not awarding Wife her community property share of those accounts. The order does not explain why the court awarded Husband a QDRO of Wifes retirement accounts but did not award Wife a QDRO of Husbands retirement accounts. The $170,000 monetary award adequately addressed Wifes conduct that resulted in the loss of the house. We think the court abused its discretion when it also denied Wife her community property share of Husbands retirement benefits. As with Wifes retirement accounts, it is not clear whether Husbands retirement accounts were subject to discharge in Husbands bankruptcy. We therefore remand this issue to the trial court to determine whether Husbands obligation to provide Wife her community property share of his retirement accounts has been discharged in his bankruptcy and, if it has not, for an order awarding Wife her share of this asset or ordering the preparation of a QDRO.

XI. Husbands Request for Sanctions for a Frivolous Appeal

In his respondents brief, Husband asks this court to consider imposing sanctions for a frivolous appeal. In light of the reversal, that request is "obviously untenable." (In re Marriage of Koester (1999) 73 Cal.App.4th 1032, 1041.) Furthermore, Husband failed to make his request by separate motion, as required by the rules of court. (Cal. Rules of Court, rule 27(e).) We therefore decline to award sanctions in this case.

DISPOSITION

The judgment is reversed. Paragraph 10 of the courts order, finding its award to be in the nature of spousal support, is stricken. The matter is remanded to the trial court for further proceedings regarding the bonds and the parties 401K and pension accounts, consistent with the opinions expressed herein. As to the balance of the property award, Wife has failed to demonstrate error that impugns the courts award. The parties shall bear their own costs on appeal.

WE CONCUR: WUNDERLICH, J. and MIHARA, J.